121386: If he says to the broker: Sell this for such and such an amount and anything more than that is yours

If a person works as a broker and middleman in real estate transactions, and he is the middleman between the seller and buyer of an apartment and he asks the owner of the apartment how much he wants to sell it for and he says 100,000, and the broker says: Fine, I will sell it for you but anything more than 100,000 is for me, then the sale goes ahead, with the broker bringing both of them together and telling the buyer to agree with the seller on a price of 105,000, without the buyer knowing of this agreement (between the broker and the seller) -- what is the ruling on the money earned by the broker (£5000)?.

Praise be to Allaah.

There is nothing wrong with the broker taking this additional
amount, whether the buyer knows about it or not. That is because the owner’s
saying to the broker: “Sell this for such and such an amount, and whatever
is extra is yours” comes under a concession granted by a number of scholars
and was also the view of Ahmad and Ishaaq (may Allaah have mercy on them).
It was also narrated from Ibn ‘Abbaas (may Allaah be pleased with him). They
regarded it as similar to mudaarabah.

Al-Bukhaari (may Allaah have mercy on him) said in his
Saheeh: Chapter on the payments of the broker: Ibn Sireen, ‘Ata’,
Ibraaheem and al-Hasan did not say that there was anything wrong with the
payment of the broker. Ibn ‘Abbaas said: There is nothing wrong with saying
“Sell this garment and anything in excess of such and such is for you”. And
Ibn Sireen said: If he says, “Sell it for such and such, and any profit is
for you, or it is between me and you,” there is nothing wrong with it. The
Prophet (blessings and peace of Allaah be upon him) said: “The Muslims are
bound by their conditions.” End quote.

Ibn Qudaamah (may Allaah have mercy on him) said in
al-Mughni (5/86): If he says, “Sell this garment for 10, and anything
more than that is for you,” that is valid and he is entitled to the
additional amount. But al-Shaafa’i said: It is not valid.

The validity of this is indicated by the fact that Ibn
‘Abbaas did not see anything wrong with it, and because he is disposing of
his property with his permission. So the condition that the profit is for
him is valid, as in the case of mudaarabah and musaaqaah. End quote.

Imam Ahmad regarded that as permissible and as being similar
to mudaarabah. But the majority did not allow it because the amount of the
broker's payment in this case is unknown, as he does not know how much he
will get.

The more correct view is that it is permissible, based on
what has been narrated from the salaf concerning that.